TMI Blog2014 (12) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... valent on 09/05/2013 when the Bill of Entry for home consumption was filed. On that date when the bill of entry was filed, Notification 98/2009 clearly stated that the exemption from safeguard duty and anti dumping duty shall not be available in case materials are imported against an authorisation made transferable by the regional authority. The said Notification does not stipulate on what date the authorisation should have been made transferable. In the absence of any specific mentioning of the date as to when the transferability should have been made, there is no merit in the contention of the appellant that the Notification stipulates 18/04/2013 as the date on which the authorisation should have been transferable. Since the wordings of the Notification are clear and unambiguous, no extra support or aid is required for interpreting the Notification. In this view of the matter, I am of the view that the appellant is not eligible for the benefit of exemption from safeguard duty and anti dumping duty in respect of ex-bond bill of entry filed on 09/05/2013 - Decided against assessee. - Appeal No.C/87812/13-Mum - - - Dated:- 15-7-2014 - Ashok Jindal (J) and P K Jain (T) Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty on the imported goods. Aggrieved from the said order, the appellant is before us. 3. The ld. counsel for the appellant submits that they have purchased the DFIA in question from the original exporter which was transferred by making necessary endorsement of transferability on 09.04.2013 post completion of export obligation by the Regional Authority. The said DFIA allowed import of the goods without payment of duty of customs including Anti Dumping Duty without any restriction of use of the imported goods by the licence holder only. Therefore, the exemption from payment of duty of customs including Anti Dumping Duty was available to the imports made by the licence holder as well as the transferee. 4. It is further submitted that once the DFIA is issued the exemption is available on the date of issue ought to be allowed even to a transferee. To support this contention, he rlied on the decision of Monica Electronics Ltd. 2001 (136) ELT 258 and Namco Steels P. Ltd. 2013 (296) ELT 68. He further submitted that thereafter another Notification No. 45/13 was issued on 17.09.2013 and as per the said Notification, w.e.f. 17.09.2013 the exemption from safeguard duty and Anti Dumpin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not applicable to the facts of this case. He further submits that the decision of Monica Electronics Ltd. (supra) relied upon by the appellant is not applicable to the facts of this case as in this case the appellant is seeking benefit of exemption Notification and in that case the issue was not permissibility of imports against advance licence. Therefore, he prayed that the impugned order be upheld. 7. Heard both sides. Considered the submissions. 8. The short issue to be decided by us is whether after introduction of the Notification 24/13 dated 18.04.2013 the appellant are entitled for exemption under Notification No. 98/09 or not. 9. To conclude the issue, the Notification issued on 17.09.2013 i.e. 45/13 is very much relevant and as per the said Notification w.e.f. 17.09.2013 the exemption from safeguard duty and Anti Dumping Duty shall not be available in case materials are imported against an authorisation that has been made transferable on or after the 18.04.2013 by the Regional Authority. Therefore as per the plain reading of Notification dated 17.09.2013 if the authorisation has been made transferable on or after 18.04.2013, in that case also the exemption is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferability is endorsed, Authorization holder may transfer DFIA or duty free inputs, except fuel and any other item (s) notified by DGFT. However, for fuel, import entitlement may be transferred only to companies which have been granted authorization to market fuel by Ministry of Petroleum and Natural Gas. Once transferability is endorsed, imports against authorization or transfer of imported inputs shall be subject to payment of applicable additional customs duty / excise duty. While endorsing transferability, authorization would bear a note as to liability of such additional customs duty / excise duty. Such additional customs duty / excise duty would be reimbursed to exporter as drawback. In case of local sales by excisable unit, Cenvat credit would equal excise duty already paid. As is seen from the second unnumbered paragraph, while endorsing the transferability, authorization is required to bear the note as to liability of such additional customs duty/ customs duty which would be reimbursed to exporter as draw back. One thing becomes clear from said para that such note is required to be put on authorization, by the authorities, at the time of endorsing tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant before the adjudicating authority covers the disputed issue inasmuch as it stands held in the said decision that the policy existing as on date of issue of advance license is the relevant policy to be applied in respect of imports / exports and any subsequent amendment in the policy would not be applicable. The distinction made by the adjudicating authority that the said decision relates to the imports covered by advance license and not by duty free import authorization, cannot be appreciated inasmuch as it is the ratio of law which has to be applied and such distinction made by the adjudicating authority cannot be upheld. The said decision also supports the case of the appellant. 10. Therefore, following the precedent decision of the Tribunal and observations made in para 9 above, we hold that in this case the appellant are entitled for benefit of exemption Notification 98/09 dated 11.09.2009 from payment of duty as well as Anti Dumping Duty/safeguard duty. 11. With these terms, the impugned order is set aside; the appeal is allowed with consequential relief. (Pronounced in Court on .......................) Per: P K Jain: 12. I have gone through the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51; (b) in the case of any other goods, on the date of payment of duty. 15. A combined reading of Section 12 15 would indicate that in the case of ex-bond bill of entry the rate of duty will be applicable on the date of which a bill of entry for home consumption is presented under Section 68. In the case in hand, the ex-bond bill of entry has been presented on 09.05.2013. Thus the duty on the goods would be as applicable as on 09.05.2013. On 09.05.2013 the relevant Notification 98/09-Cus dated 11.09.2009 as amended read as under:- G.S.R. 664(E),- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts materials imported into India against a Duty Free Import Authorisation issued in terms of paragraph 4.2.1 and 4.2.2 of the Foreign Trade Policy (hereinafter referred to as the said authorisation) from the whole of the duty of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty, safeguard duty and anti-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts materials imported into India against a Duty Free Import Authorisation issued in terms of paragraph 4.2.1 and 4.2.2 of the Foreign Trade Policy (hereinafter referred to as the said authorisation) from the whole of the duty of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon, respectively, under sections 3, 8B and 9A of the said Customs Tariff Act, subject to the following conditions namely :- (i) ... (ii) ... 2. The exemption from safeguard duty and anti-dumping duty shall not be available in case materials are imported against an authorisation made transferable by the Regional Authority. 2A. With effect from 17 th September 2013, the exemption from safeguard duty and anti-dumping duty shall not be available in case materials are imported against an authorisation that has been made transferable on or after the 18 th April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es issued prior to the coming into force of the new norms. Here again there was no change in the customs exemption Notification and it is in these circumstances, the Tribunal has taken the view indicated in the said judgment. In the case in hand, the customs exemption Notification itself has been amended and therefore the benefit cannot go beyond what is permitted under the Customs Exemption Notification. 22. In view of the above position, the impugned order is upheld and the appeal is dismissed. (Pronounced in Court on......................) Difference of Opinion As there is a difference of opinion between the Members, therefore Registry is directed to place the matter before the Hon'ble President to refer the matter to Third Member for resolving the following issues: a) Whether Member (judicial) is right in holding that as per the clarification by Notification No. 45/2013 dated 17.09.2013, the appellant is entitled for exemption under Notification No. 98/09 dated 11.09.2009; b) Whether Member (Judicial) is right in relying on the decision of Namco Steels P. Ltd. 2013 (296) ELT 68 to arrive at a decision that appellant are entitled for benefit of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.1 The said Notification was further amended vide Notification 45/2013-Cus dated 17/09/2013 which read as follows: 2A. With effect from 17 th September 2013 , the exemption from safeguard duty and anti-dumping duty shall not be available in case materials are imported against an authorisation that has been made transferable on or after the 18 th April, 2013 by the Regional Authority. 24.2 The question is whether the amendment made by Notification 45/2013 is clarificatory in nature and can be held to be applicable in respect of clearances made on 09/05/2013. While the Learned Member (Judicial) has held that the said Notification 45/2013 dated 17/09/2013 is clarificatory and has relied on the decision of this Tribunal in the case of Namco Steels P. Ltd. (supra), the learned Member (Technical) has held otherwise. He has held that the amendment made vide Notification 45/2013 dated 17/09/2013 has no relevance to the facts of the case and the reliance placed on the Namco Steels P. Ltd. has no relevance as it pertained to the amendments made in the Foreign Trade Policy. 25. The learned counsel for the appellant M/s. Global Exim submits that the terms and conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation cannot have any retrospective effect so as to clarify the position prevailing prior to 17.09.2013. It is his contention that the said Notification is only prospective in nature and cannot be held to be retrospective. He also places reliance on the decision of the hon'ble Supreme Court in the case of Bombay Oil Industries Pvt. Ltd. vs. Union of India 1995 (77) ELT 32 (SC) wherein it was held that Notification cannot be held to be retro active in operation when there is no specific mention to that effect. Accordingly, he pleads for upholding the view taken by the Member (Technical). 27. I have carefully considered the submissions made by both the sides. 27.1. It is not in dispute that the appellant filed ex-bond Bill of Entry on 09/05/2013 for clearance of the goods from the warehouse. The clearance was sought to be effected under the DFIA which was transferred to the appellant on 09/04/2013. As per Section 15(1)(c) of the Customs Act, 1962, the date for determination of rate of duty and tariff value of imported goods in the case of goods cleared from a warehouse under Section 68 is the date on which the bill of entry for home consumption in respect of such goods is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly stipulates that w.e.f. 17/09/2013 , the exemption from safeguard duty and anti dumping duty shall not be available in case materials are imported against an authorisation which has been made transferable on or after 18/04/2013. In other words, Notification 45/2013 takes effect only on 17/09/2013 and not prior to that. Therefore, it cannot be said that Notification 45/2013 is a clarificatory Notification. If that be so, there was no need to specify the words with effect from 17/09/2013 . It is also an equally settled position that every word of a statute have to be given full effect to as held by the hon'ble apex Court in the case of Balwant Sing Vs. Jagdish Singh [2010 (262) ELT 50 (SC)] wherein it was held as follows: It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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